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Decision No. 16,293

Appeal of AHMED J. GAYNOR, SR., on behalf of his son AHMED J. GAYNOR, JR., from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 16,293

(August 29, 2011)

Kehl, Katzive & Simon, LLP, attorneys for respondent, Jeffrey A. Kehl, Esq. of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the City School District of the City of New Rochelle (“respondent”) that his son, Ahmed J. Gaynor, Jr. (also known as “Jamal Gaynor” or “Jamal”), is not a district resident.  The appeal must be dismissed.

In August 2008, petitioner enrolled Jamal in respondent’s schools for the 2008-2009 school year, claiming that he and his son were temporarily living with his sister in the district (“in-district residence”) as a result of a house fire at their previous residence located in Yonkers, outside the district (“Yonkers residence”).  Petitioner indicated on respondent’s enrollment form that he was Jamal’s sole parent.

On June 7, 2010, respondent became aware of an Internet blog alleging that a student named Jamal posted comments on the Internet about attending respondent’s schools as an out-of-district resident.  Specifically, the blog claimed that this student posted the following while on a bus between New Rochelle and Yonkers: “Yonkers the city I live in school ends 2 mm.  But I go 2 ... new ro high & got school all week.”  A photo of a male child was attached to this posting, which respondent identified as Jamal Gaynor. 

Based on this information, respondent commenced an investigation into petitioner’s residency.  By letter dated June 24, 2010, respondent informed petitioner that his son was not a district resident entitled to attend respondent’s schools tuition-free and that he had the opportunity to respond.  Petitioner did not respond to this notice.  By letter dated July 14, 2010, Jamal was excluded from school.  This appeal ensued.  Petitioner’s request for interim relief was granted on September 22, 2010.

Petitioner claims that his son is a district resident entitled to attend respondent’s schools tuition-free.  Respondent alleges that petitioner’s appeal should be dismissed for failure to comply with the notice provisions of §275.11 of the Commissioner’s regulations.  Respondent also maintains that petitioner is not a district resident and that he fails to state a claim upon which relief may be granted.

The purported notice of petition served by petitioner is defective and does not comply with §275.11(a).  The “notice” served by petitioner contains only the caption of this appeal and a statement in support of his position, and does not contain any of the language required by §275.11(a), which advises a potential respondent of the obligation to answer the petition in accordance with the Commissioner’s regulations and of the consequences of failing to answer.  A notice of petition that does not contain the language required by §275.11 is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Hoggins Maldonaldo, 50 Ed Dept Rep, Decision No. 16,185; Appeal of Khalid, 40 id. 621, Decision No. 14,570).  Accordingly, the appeal must be dismissed. 

While the appeal must be dismissed on procedural grounds, I note that petitioner retains the right to reapply for admission to the district on his son’s behalf in the future and to present any new information or documentation for respondent’s consideration.

Finally, I note that, in making its residency determination, the district appears to have relied, in large part, on Internet searches, blogs and postings.  I caution respondent against relying solely on such evidence in conducting future residency investigations.  While such information may warrant the initiation of an investigation and even be used to support a district’s determination regarding residency, absent proof of its reliability, such evidence should not be used as the primary form of evidence in determining physical presence and intent to remain in the district.